to disregard the evidence. must be overruled. (147 N.E.) This exception About 4 o'clock in the afternoon of October 20, 1922, the plaintiff was driving a closed market wagon along the highway between Brockton and West Bridgewater. The road was straight and practically level for 600 feet in either direction. Its surface was a hard macadam 211⁄2 feet wide with a shoulder of gravel 4 feet wide on either side approximately level with the hard surface. There were no houses within three or four hundred feet. The plaintiff was seated on the right-hand side of the wagon. The curtain on his left came forward as far as the back of the seat and that on his right as far as the front of the seat. He drove at the extreme right of the macadam surface with his right wheels about a foot from the righthand side of the road. He was holding the reins in both hands and "jogging" some six or seven miles per hour. Something struck the wagon. The horse hesitated an instant and then ran, turning to the right into the woods, and throwing the plaintiff to the ground after going some 30 or 40 feet. The plaintiff was thrown forward onto the horse by the shock of the collision and to hold himself grasped a part of the harness. As he fell he glanced to the left and saw a truck passing the front of the wagon at a speed which he estimated at about 25 miles per hour and which he testified was slow under the conditions at the time. He saw no other automobile passing. He heard no sound of a horn. The driver of the truck, who seemed extremely nervous, came and assisted him. From the defendant's answers to interrogatories, put in evidence by the plaintiff, it appeared that the truck was going in the same direction as the wagon, at a speed not over 12 miles per hour, with a load weighing about two tons, and struck the left hind wheel of the wagon; that there was another truck on the road which also was going in the same direction; that this Reo truck came against the left front wheel of the defendant's truck and caused it to strike the plain- | tiff's wagon. The defendant did not know the owner, the driver or the number of this Reo truck, but thought it bore a Rhode Island registry. After striking the wagon the defendant's truck stopped as soon as possible, going not more than 8 feet beyond the point of the collision. There was no other material evidence to show what took place; and the only evidence to connect the defendant with the accident was its answers to the interrogatories. Interrogatory 1 was as follows: "Did a motor truck belonging to the defendant, and driven by an agent or servant of the defendant, collide with or strike from the rear, a wagon driven by George L. Washburn on South Main street, Brockton, Massachusetts, on or about October 20, 1922?" The answer was: "A truck belonging to the defendant and driven by an agent collided with a wagon on South Main street, between Bridgewater and Brockton, October 20." The only evidence offered by the defendant was by a witness who, by consent, while the plaintiff was putting in its case, testified in regard to certain number plates. At the close of the plaintiff's case, the defendant moved for a directed verdict, and when this was refused asked instructions: "(1) That the plaintiff is not entitled to recover. "(3) The fact that the truck belonging to the defendant's company struck the plaintiff's team is not sufficient evidence to justify a verdict for the plaintiff, without further evidence that the accident was caused by a negligent act on the part of the defendant, its agent or servant. The plaintiff must show, by some positive evidence, that a negligent act on the part of the defendant's agent or servant contributed to the cause of the accident, and this may not be inferred without some positive evidence. "(4) There is no evidence that the accident was caused through the negligence of the agent or servant of the defendant, acting within the scope of his employment. (7) There is no evidence on which it may be found that a horn was not sounded by the driver of the defendant's truck." [2] We will deal with these in inverse order. Although the question is close, it cannot be held that the judge was wrong in refusing to give the seventh request. The only testimony was the plaintiff's statement that he did not hear a horn. "Merely negative testimony of that nature without circumstances tending to give it affirmative force is of no value." Koch v. Lynch, 247 Mass. 459, 462, 141 N. E. 677; but there was here a full description of the circumstances bearing upon the likelihood of the plaintiff's hearing a horn had one been sounded. We think the defendant was sufficiently protected by the instruction actually given. [3] The fourth request should have been given. The law of Massachusetts is well settled that proof that the driver of a motor vehicle was in the general employ of the defendant at the moment of an accident, and that the defendant was owner of the vehicle, is not enough to prove that the driver was then acting within the scope of his employment. Porcino v. DeStefano, 243 Mass. 398, 137 N. E. 664; Gardner v. Farnum, 230 Mass. 193, 119 N. E. 666, L. R. A. 1918E, 997. Marsal v. Hickey, 225 Mass. 170, 114 N. E. 301; Hartnett v. Gryzmish, 218 Mass. 258, 105 N. E. 988. [4, 5] The defendant's use of the word "agent" in the answer to the first interrogatory does not seem to us an admission that the driver was then acting within the scope of his employment. The driver was in the general employ of the defendant. The word | [8, 9] The mere happening of a rear-end agent was descriptive of the driver. The collision does not prove negligence. Reardon further answers do not imply anything with regard to the scope of authority or the nature of what the driver was doing. The argument is not forceful that knowledge that the truck was loaded, and of the weight of the load, implies that the work was being done at the moment for the defendant. No question was asked in regard to what was being done or for whom. No fact was inquired about that would show that the truck was loaded with articles belonging to the defendant or being conveyed for its purposes. Inference from the use of a word put into a question should not be allowed to take the place of evidence of facts in a matter where the burden of proof was on the interrogating party, and where he failed to inquire. The defendant had a right to say nothing and to require proof from the plaintiff. No inference against it can be drawn from its failure to explain where the circumstances do not call for an explanation. Our decisions already cited make clear that the burden of explanation in this matter did not rest on the defendant. There are no such additional facts in this case as would justify the inferences that were held reasonable in Breen v. Dedham Water Co., 241 Mass. 217, 135 N. E. 130; Conant v. Constantin, 247 Mass. 76, 141 N. E. 587; and McDonough v. Vozzela, 247 Mass. 552, 142 N. E. 831. There was no sufficient evidence that the driver although admittedly in the general employ of the defendant and driving its truck was acting at the moment in the scope of his employment. [6, 7] The third request presents more difficulty. Where common experience teaches that an accident would not have taken place under the circumstances disclosed by all the observed facts with the fair inferences from them, if every person concerned had acted with reasonable care; there the happening of the accident furnishes, in itself, some proof of negligence. If the obvious neglect is that of the defendant or of some one for whose neglect he is in law answerable, a plaintiff has made out a prima facie case of negligence, when the evidence shows such a situation. He is not compelled to go further and point out the particular act of careless ness. v. Boston Elevated Railway, 247 Mass. 124, 141 N. E. 857; Froio v. Eastern Massachusetts Street Railway, 247 Mass. 474, 142 N. E. 255; Sandler v. Boston Elevated Railway, 238 Mass. 148, 130 N. E. 104. These cases call attention to the many conditions exist. ing in the public highways which prevent a conclusion that rear-end collisions must necessarily be due to carelessness. Where however, as here, the uncontradicted evidence shows a broad, smooth highway with only a wagon at the extreme right and one, possibly two, trucks moving at a reasonable speed behind it, with the road open and free from vehicles for a long distance in front; and further shows that a truck struck the wagon from behind; the evidence certainly justifies, though it may not require, a conclusion that some one was negligent. Vincent v. Norton & Taunton Street Railway, 180 Mass. 104, 61 N. E. 822. It presents a situation where an explanation is due, if something other than negligence is the cause of the happening; and it relieves the plaintiff from showing the particular act of carelessness. McNicholas v. New England Tel. & Tel. Co., 196 Mass. 138, 81 N. E. 889. It is true that here the plaintiff himself put in an explanation; but this explanation came from the defendant; the jury might disbe lieve it; and we think the plaintiff is not precluded from claiming that, since he saw no car other than the defendant's, there must be some error in the story of the defendant in regard to the Reo car. The judge was not bound to give the third request. The exceptions to the charge have been dealt with in what has been said of the third, fourth, and seventh requests. The charge was confused and inaccurate. The exceptions to the admission of evidence and to the refusal of the judge to give the third and the seventh instructions are overruled. [10] The first and fourth instructions should have been given; and, since there was no sufficient evidence that the defendant's servant was acting within the scope of his employment, the motion for a directed verdict for the defendant should have been allowed. The exceptions to these rulings are sustained. So ordered. GRAY v. CURRIER. CURRIER v. GRAY. (147 N.E.) (Supreme Judicial Court of Massachusetts. Middlesex. April 17, 1925.) 1. Contracts 322 (2)-Driller of well held entitled to show reduction of his working force was due to failure to receive payments for work done as drilling progressed. Where contract for drilling well provided that as work progressed contractor should be paid 50 per cent. per each 50 feet, evidence that by reason of failure to receive such payments driller was compelled to reduce his force was admissible to explain his delay. 2. Appeal and error 992-Parent and child 12-Statements of plaintiff's agent to defendant's son as to time for completion of well held not to bind defendant, unless son's agency was shown; judge to decide as to agency of son, so as to bind father by statements to him, and decision not disturbed, unless clearly wrong. Where son of defendant had nothing to do with drilling of well after contract was signed by defendant, what was said by plaintiff's agent to him thereafter as to time of its completion was incompetent to bind defendant, unless son was agent for him, it being for judge to decide, as prelimniary matter, whether agency was made out sufficiently, and his decision will not be disturbed, unless clearly wrong. 3. Contracts 300 (3) Charge that well driller's delay in completing contract caused by owner's failure to make payments was not chargeable to driller held without error. In action for amount alleged to be due for drilling well, where, under contract, duty to pay and to ascertain when payments were due rested on owner, there was no error in charge that, unless there was unreasonable delay by driller, he was entitled to recover, and that he must prove performance in reasonable time, but, if delayed because of owner's breach of contract to make payments required by contract, he was not chargeable with such delay. 4. Trial 235 (6)-Instructions on waiver of claim held to protect rights of plaintiff. In action for damages for unreasonable delay in drilling well, instructions that what was said by plaintiff's agent after complaint was made to defendant as to delay in completing well was not conclusive evidence of waiver of claim for delay, and that it was no evidence of waiver of delay occurring afterwards, and that there was no waiver unless such was intention, and that jury must decide whether agent was authorized to waive plaintiff's claim, fully protected her rights. been expended to construct another water supply, because of defendant's failure to carry out his contract within reasonable time. Verdicts for said Gray in both actions, and said Currier excepts. Exceptions overruled. F. M. Qua, of Lowell, for Gray. WAIT, J. These two actions of contract were tried together. Gray sued for the agreed price of sinking a well. Mrs. Currier brought a cross-action for damages caused by delay of Gray in completing the work. Verdicts in favor of Gray were returned in both actions and the cases are before us upon exceptions of Mrs. Currier to the admission and exclusion of evidence and to portions of the charge to the jury. The contract, which was dated September 26, 1921, was in writing and was drawn up by Gray after negotiation between his son Leland, acting for him, and Mr. Currier, acting for his wife. It provided that Gray should sink a well on premises of Mrs. Currier at Peterborough, N. H., to the depth of 50 feet or more for $7 per foot for every foot drilled; that he should furnish casing and that Mrs. Currier should supply water for the boiler; that Mrs. Currier could stop the drilling at any time, but must pay at the agreed price for at least 50 feet; that Mrs. Currier should pay for 50 per cent. of the work done every 50 feet as the work progressed, and for the full amount drilled as soon as the drilling stopped. Thus it did not specify any time within which the work was to be done; nor any depth to be attained; nor any amount of flow to be secured. Gray knew that Mrs. Currier wanted the water to supply a camp school to be carried on by her in the summer of 1922. He brought his machinery to the premises about October 27, 1921, and he ceased drilling on July 7, 1922. Mrs. Currier and her husband were away most of this period, although Mr. Currier was at Peterborough on several occasions and saw Gray, but had no conversation about the well. A Miss McKissick, who was executive secretary for the camp school and private secretary for Mr. Currier, and who could have been found to have authority to act for Mrs. Currier in matters affecting the camp school, was on the premises and spoke with Gray three times in April and almost daily after the 1st of May, She testified that in April she told him the Curriers were worried because they knew he Exceptions from Superior Court, Middle- had not been working, and asked how he sex County; S. E. Qua, Judge. Separate actions of contract by James S. Gray against Marie G. Currier to recover an amount alleged to be due for drilling well, and by Marie G. Currier against James S. Gray to recover amounts alleged to have was getting on, and that daily in May and early June she had asked when he expected to get water and declared that something would have to be done if he did not get it. No payment was made or tendered as the work progressed, and, late in May, Gray For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes wrote asking for money. He received no letter in reply, but spoke with Miss McKissick. The testimony was conflicting in regard to what was said. Gray testified that, when he asked Miss McKissick why his money was not sent him, she said Mr. Currier was not good-natured the morning he received the letter; while Miss McKissick stated that she said Currier was not satisfied with Gray's performance, and that when Gray said, "How can I go on digging the well without money?" she replied that, if he had been on his job, he could get his money. She testified that she made the same answer whenever Gray asked her about money. him that Currier was displeased because Gray was not proceeding with the work; that he wanted him to use every effort to get the preliminary work done in the fall, so that there should be no question of delay when the school opened. Leland Gray testified that he had nothing to do with the work after the contract was signed; that he was at work elsewhere, was not living with his father, and never communicated to his father what Wood said. The testimony was excluded. Mrs. Currier's exception must be overruled. What was said between Wood and Leland Gray was obviously incompetent to affect his father unless Leland was agent for his father. It was for the About June 7, Gray notified Miss McKis- judge to decide, as a preliminary matter, sick that he had found water. whether agency was made out sufficiently. His decision will not be disturbed. It was not clearly wrong. Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 104 N. E. 379. [3] Mrs. Currier's remaining exceptions relate to the charge. The jury were instructed that unless there was unreasonable delay [1] The well was then between 200 and 275 feet deep, and the flow 6 or 7 gallons per minute. They spoke about the well, which Gray said he did not regard as a good one. Miss McKissick asked if he could get more water by going on. Gray said he did not know. She told him if there was a chance of getting more water to keep drill-on Gray's part, he was entitled to recover. ing; and when he said, "How about my money?" she replied, "You will get your money." He did keep on until July 7. On June 7 he let a man go who had been at work with him. Mrs. Currier excepted to the admission of testimony that this was done because he did not have the money to pay him. This evidence was admissible. By the terms of the contract payment was to be made as the work progressed 50 per cent. for each 50 feet. If by reason of failure to receive payments justly due, Gray was compelled to reduce his force and thus delay completion, he was entitled to show it in defense to a claim that he delayed unreasonably. Wallis v. Wenham, 204 Mass. 83, 90 N. E. 396, 17 Ann. Cas. 644. He must prove that he had performed his When Gray ceased drilling on July 7, no one had given him orders to stop. He stopped because he believed further drilling would not produce more water. The well was tested by an engineer for Mrs. Currier on July 15, and was found to be 377 feet and 3 inches deep, with a flow of 6 or 7 gallons per minute. After Gray reported the flow from the well on June 7, Mrs. Currier made arrangements for securing a larger supply elsewhere, and she incurred an expense in excess of $4,000 in obtaining such supply. She was, further, damaged by delay in open-mitted the jury to consider whether there ing the camp school. [2] Gray testified that the first time anybody had ever said anything to him about a time when the work was to be completed was in the winter of 1922, when Currier, in refusing a demand for payment, stated that the work was to have been finished before July 1, 1922. Mrs. Currier offered testimony that, in the fall of 1921, one Wood, at the request of Currier and after failing to find the senior Gray, saw Leland Gray and told had been a waiver on her part of any claim for delay. The exception is without merit. The statement of the brief that "the court erred in instructing the jury they might consider the failure of the defendant to pay the plaintiff money as a waiver of any damage she might have or would suffer" is erroneous. No such instruction was given. The jury were allowed to consider whether there was any waiver of a claim for damages in what took place about June 6 or 7, when, as (147 N.E.) they might find, Gray continued drilling | clusive, which tax, it is alleged, is without after complaint of delay, on an assurance authority of law. The respondent filed a from Miss McKissick that if he drilled deep- general demurrer and the case is reserved for er he should get his money. They were in- the determination of this court. The reserstructed that the language was not conclu- vation contains a stipulation that if the desive evidence of waiver of a claim for delay; murrer is overruled a decree is to be enterand, that it was no evidence at all of a ed as prayed for; if the demurrer is suswaiver of delay occurring afterward. They tained, the petition is to be dismissed. were warned that there was no waiver un- G. L. c. 63, § 11, provides that every savless such was the intention, and further-ings bank and every trust company having more, that they must first decide whether a savings department shall pay, on account Miss McKissick had authority to waive of its depositors, an annual tax of one-half any claim of Mrs. Currier's. The bill of ex- of 1 per cent. which shall be levied on the ceptions does not show that any request for amount of the deposits. Section 12 of the instructions on the point was presented be- same chapter provides that: fore argument, or that any suggestion of "So much of said deposits shall be exempt form of statement was made to the judge from taxation under the preceding section as is when the exception to the charge was claim-invested in any of the following: * ** (b) ed. Mrs. Currier's rights were sufficiently Loans secured by mortgage of real estate taxable in this commonwealth." protected. We find no error presented by the bill of exceptions. Exceptions overruled. LEXINGTON SAV. BANK v. COMMON- (Supreme Judicial Court of Massachusetts. Taxation 386(1)-Savings banks may deduct from amount of deposits total amount of loans invested in mortgages on land within commonwealth, regardless of its assessed valuation. In view of G. L. c. 59, § 4, cl. 2, and sections 12-14, 52; Id. c. 62, § 1 (a), as amended by St. 1924, c. 15, § 1; and G. L. c. 63, §§ 1116, and chapter 168, § 54, savings banks within commonwealth are permitted to deduct from deposits, for purpose of taxation, total amount of their loans secured by mortgages on land within commonwealth, without regard to its assessed value. Other property exempt from taxation, specified in this section, need not be considered as such exemptions are unnecessary to a determination of the question raised. The petitioner, in filing the return required to be filed by it on or before November 10, 1924, set forth its average deposits for the preceding six months, showed that these deposits were invested in loans secured by mortgage of real estate taxable in this commonwealth to the amount of $638,417.13, and claimed a deduction of that amount under section 12 (b). It is alleged in the petition, as amended, that in assessing taxes due from the petitioner, and also in assessing similar taxes upon all other savings banks in the commonwealth, the commissioner of corporations and taxation ruled that under section 12 (b), in any case where the amount of the loan secured by mortgage of real estate taxable in this commonwealth exceeded the assessed value of such real estate as fixed by the assessors of the city or town where the same was located on the first of April next Case Reserved from Supreme Judicial preceding, the full amount of said loan Court, Suffolk County. should not as matter of law be deducted, but only so much thereof as was not in exPetition for abatement of tax by the cess of the assessed value. He determined Lexington Savings Bank against the Common- that, of the mortgage loans reported by the wealth. Respondent demurred to the peti- petitioner, the total amount of $63,842 contion, and the case was reserved for deter-sisted of the excess of certain loans over the mination of the Supreme Judicial Court. assessed value of the real estate mortgaged Demurrer overruled, and decree entered for to secure the same. Accordingly he refused petitioner. to allow to that extent the deduction claim Wm. H. Hitchcock, of Boston, for peti-ed by the petitioner under section 12 (b) and tioner. J. R. Benton, Atty. Gen., and Alexander Lincoln, Asst. Atty. Gen., for the Commonwealth. CROSBY, J. This is a petition for abatement of a portion of a tax on the amount of deposits in the bank of the petitioner for a six-months period ending November 1, 1924, assessed under G. L. c. 63, §§ 11 to 16, in allowed thereunder the sum of $574,575. In accordance with this ruling a tax of $1,195.98 was assessed upon the petitioner and was paid by it. If, in the assessment of the tax, the full amount of the loans secured by mortgages of real estate had been deducted the tax would have amounted to $1,020.41. It is the contention of the petitioner that the ruling of the commissioner was erroneous, that the full amount of such loans should For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes |